DUI Laws

What follows is a brief outline of Montana’s DUI laws for drivers with non-commercial driver’s licenses. Discussed are the two major DUI crimes, DUI and DUI per se, as well as administrative refusals and punishment sections for these crimes. Although written to be easily understood, this outline will not provide enough information or detail to evaluate the merit or quality of a DUI case, nor is it meant to be a complete and total resource for DUI laws in Montana.

It is vital to act quickly when charged with a DUI in Montana, particularly if you have refused breath / blood testing, in which you only have thirty (30) days to challenge the administrative suspension of your driver’s license. Please contact a National College of DUI Defense member attorney for further assistance is defending against a DUI charge or for more information about DUI laws in Montana.

I. Driving under the Influence (Montana Code Annotated § 61-8-401)

(1)(a)-(d) It is unlawful for a person to:

1. Drive or be in actual physical control of a vehicle,

2. While under the influence of alcohol and/or drugs.

3. On a way of the State open to the public.

(3)(a) “Under the influence” means that “as a result of taking into the body alcohol, drugs, or any combination of alcohol and drugs, a person’s ability to safely operate a vehicle has been diminished.”

(4)(c) There is an inference that an individual is “under the influence” if the individual’s Blood Alcohol Content (BAC) or Breath Alcohol Content (BrAC) was measured as .08 or greater within a “reasonable time after the alleged act.” This inference is rebuttable.

NOTE: Proving a DUI in Montana requires that the State prove beyond a reasonable doubt that an individual was actually impaired, i.e., that the individual’s ability to operate a motor vehicle was diminished due to alcohol and/or drugs.

(1)(a) It is unlawful for any person to drive or be in actual physical control of a noncommercial vehicle upon the ways of this state open to the public while the person’s alcohol concentration, as shown by analysis of the person’s blood or breath is 0.08 or more.

NOTE: Proving a DUI Per Se in Montana does not require a showing of impairment, only that an individual’s BAC (or BrAC) was .08 or greater at the time of driving.

M.C.A. § 61-8-404 (1)(a) A measured amount of alcohol and/or drugs as found in a person’s blood or breath is admissible. A positive test result does not, in itself, prove that the person was under the influence of a drug or drugs at the time the person was in control of a motor vehicle.

NOTE: A person may not be convicted of a DUI based upon the presence of a drug or drugs in the person unless some other competent evidence exists that tends to establish that the person was under the influence of a drug or drugs while driving or in actual physical control of a motor vehicle within this state. See M.C.A. § 61-8-404(a) and State v. Larsen, 2010 MT 230, ¶ 56,.

NOTE: The Montana Supreme Court has now required that in a DUI of alcohol case, this same requirement of corroborative competent of impairment must be introduced. See State v. Michaud, 2008 MT 88.

M.C.A. § 61-8-404 (1)(b) A measured amount of alcohol and/or drugs can be shown by a

2. A breath test at the police station (conducted on an Intoxilyzer 8000); or,

3. A blood test.

Each of these tests must be done 1) by a person trained and/or approved by the Montana Department of Justice, and 2) done to standards approved by the Montana Department of Justice.

NOTE: Absent a proper scientific foundation, a PAST or PBT is inadmissible. See State v. Damon, 2005 MT 218.

NOTE: See the requirements of M.C.A. § 61-8-405(1), which specify who is approved to perform a legal blood draw.

M.C.A. § 61-8-404 (1)(c) A individual’s performance on Standardized Field Sobriety Tests if conducted by an officer trained by the Department of Justice or has training approved by the Department of Justice.

NOTE: The Montana Supreme Court has held that there are certain scientific foundational requirements that must be met before evidence of the Horizontal Gaze Nystagmus can be introduced. SeeState v. Michaud, 2008 MT 88; Bramble v. Dept. of Justice, 1999 MT 132.

M.C.A. § 61-8-404 (2) Refusal to submit to a breath test, a blood test, or field sobriety tests, while an individual is under arrest for suspicion of driving under the influence, is admissible at a subsequent DUI trial. The refusal gives rise to a rebuttable inference that the individual was under the influence.

M.C.A. § 61-8-404 (3) Any other competent evidence bearing on the question of whether the person was under the influence of alcohol, drugs, or a combination of alcohol and drugs is also admissible.

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M.C.A. § 61-8-405 (2) In addition to any test administered at the direction of a peace officer, a person has the right to request an independent blood test at his or her own expense. The peace officer may not unreasonably impede the person’s right to obtain an independent blood test. The officer may but has no duty to transport the person to a medical facility or otherwise assist the person in obtaining the test.

NOTE: Refusal of a breath or blood test under Montana’s Implied consent is not a crime and carries no criminal punishment.

M.C.A. 61-8-402 (1) A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent to a test or tests of the person’s blood or breath for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person’s body.

M.C.A. 61-8-402 (2)(a) An officer may request a blood or breath test when:

(i) the officer has probable cause to believe that a person has been driving or in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol and/or drugs and the person has been placed under arrest for Driving Under the Influence;

(…)

(iii) the officer has probable cause to believe that the person was driving or in actual physical control of a vehicle:

(A) while under the influence and the person has been involved in a motor vehicle accident or collision resulting in property damage; or

(B) involved in a motor vehicle accident or collision resulting in serious bodily injury, or death.

M.C.A. 61-8-402 (2)(b) The arresting may choose which test or tests to request.

M.C.A. 61-8-402 (3) If a person is unconscious, or is otherwise incapable of refusing a blood or breath test, the consent provided for in subsection (1) is valid.

M.C.A. 61-8-402 (4) While an individual may refuse to submit to testing, if they choose to do so, their license will be immediately seized and forwarded to the Department of Justice.

M.C.A. 61-8-402 (5) When a person refuses testing, the officer shall issue that person a 5 day driving permit.

M.C.A. 61-8-402 (6)(a) The following suspension periods are applicable upon refusal to submit to one or more tests:

(i) Upon a first refusal within 5 years, the person’s driver’s license shall be suspended for 6 months, with no possibility of a restricted probationary license;

(ii) Upon a second or subsequent refusal within 5 years, the person’s driver’s license shall be suspended for 1 year, with no possibility of a restricted probationary license.

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M.C.A. § 61-8-403 (1) A person has 30 days from the date of refusal to file a petition to challenge the license suspension or revocation in the district court in the county where the arrest was made.

(2) The district court in jurisdiction shall set the matter for a hearing.

(3) The petitioner may request, and the court may grant, an order that the Department of Justice return the seized license or issue a stay of the suspension or revocation action pending the hearing.

(4)(a) The district court in jurisdiction shall hear testimony on the following issues:

(i) Whether the officer had particularized suspicion to initiate a traffic stop of the petitioner;

(ii) …

(iii) Whether the officer had probable cause to believe the petitioner was under the influence of alcohol and/or drugs; and,

(iv) Whether the person refused to submit to one or more tests designated by the officer.

(4)(b) Based only on these issues, the court shall determine whether the petitioner is entitled to a license or whether the petitioner’s license is subject to suspension or revocation.

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M.C.A. § 61-8-404 (2) Refusal to submit to a breath test, a blood test, or field sobriety tests, while an individual is under arrest for suspicion of driving under the influence, is admissible at a subsequent DUI trial. The refusal gives rise to a rebuttable inference that the individual was under the influence.

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M.C.A. § 61-8-409 (1) A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent to a preliminary alcohol screening test of the person’s breath, for the purpose of estimating the person’s alcohol concentration, upon the request of a peace officer who has a particularized suspicion that the person was driving or in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol.

M.C.A. § 61-8-409 (2) The person’s obligation to submit to a test under Montana Code Annotated § 61-8-402 is not satisfied by the person submitting to a preliminary alcohol screening test pursuant to this section.

M.C.A. § 61-8-409 (3) The peace officer shall inform the person of the right to refuse the test and that the refusal to submit to the preliminary alcohol screening test will result in the suspension of that person’s driver’s license.

M.C.A. § 61-8-409 (4) If the person refuses to submit to a test under this section, a test will not be given. However, the refusal is sufficient cause to suspend the person’s driver’s license as provided in Montana Code Annotated § 61-8-402.

M.C.A. § 61-8-409 (5) A hearing as provided for in Montana Code Annotated § 61-8-402(3) must be available. The issues in the hearing must be limited to determining whether a peace officer had a particularized suspicion that the person was driving or in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol and whether the person refused to submit to the test.

M.C.A. § 61-8-409 (6) The provisions of Montana Code Annotated § 61-8-402(3) through (8) that do not conflict with this section are applicable to refusals under this section. If a person refuses testing under this section and refuses testing under Montana Code Annotated § 61-8-402, the Department may only treat it as a single refusal and may not suspend the person’s license separately for both refusals.

M.C.A. § 61-8-409 (7) A test may not be conducted or requested under this section unless both the peace officer and the instrument used to conduct the preliminary alcohol screening test have been certified by the Department of Justice pursuant to rules adopted under the authority of Montana Code Annotated § 61-8-405(5).

M.C.A. 61-8-734 (1)(b) For the purposes of determining whether a current DUI or DUI Per Se charge is a first, second, or third offense, the number of DUI or DUI Per Se convictions within the last ten (10) years must be counted. If more than ten (10) years have elapsed since a previous DUI or DUI Per Se conviction that conviction cannot be used to determine the amount of prior DUI or DUI Per Se convictions for sentencing purposes. If, however, the current DUI or DUI Per Se charge would or has resulted in a third (3rd) or subsequent lifetime DUI or DUI Per Se conviction, then all prior DUI and DUI Per Se convictions must be counted for sentencing purposes.

M.C.A. § 61-8-409 (1)(c) Previous convictions for either DUI or DUI Per Se charges count as priors for sentencing purposes for a current DUI or DUI Per Se charge.

M.C.A. § 61-8-409 (4) A court may not defer imposition of sentence for a DUI or DUI Per Se conviction.

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Driving Under the Influence, First through Third Offense, a Misdemeanor

M.C.A. § 61-8-714 (1) On a DUI first offense, the minimums and maximums are:

Jail time: 24 hours – 6 months

Fine: $600 – $1,000

If there was at least one passenger under the age of 16, then the sentence minimums and maximums are:

Jail Time: 48 hours – 12 months

Fine: $1,200 – $2,000

The person must also pay for and complete the ACT assessment, education, and treatment program as required by M.C.A. § 61-8-732.

The person’s driver’s license shall also be suspended for a period of 6 months, though the person may be eligible for a probationary, necessary use, license, subject to M.C.A. § 61-5-208(2)(b).

Possible ignition interlock requirement during the probationary period pursuant to M.C.A. § 61-8-442.

M.C.A. § 61-8-714 (2) On a DUI second offense, the minimums and maximums are:

Jail time: 7 days – 6 months

Fine: $1,200 – $2,000

If there was at least one passenger under the age of 16, then the sentence minimums and maximums are:

Jail Time: 14 days – 12 months

Fine: $2,400 – $4,000

The person must also pay for and complete the ACT assessment, education, and treatment program as required by M.C.A. § 61-8-732.

The person’s driver’s license shall also be suspended for a period of twelve (12) months and the person is not eligible for a probationary, necessary use, license, subject to M.C.A. § 61-5-208(2)(b) until forty-five (45) days of the suspension have been served.

Further, as provided in M.C.A. § 61-8-733, the court shall order that each motor vehicle owned by the person at the time of the offense be either seized and subjected to the procedure provided under M.C.A. § 61-8-421 or equipped with an ignition interlock device as provided under M.C.A. § 61-8-442, which requires that for twelve (12) months after the suspension of the person’s driver’s license that any vehicle that person operates be equipped with an ignition interlock device.

M.C.A. § 61-8-714 (3) On a DUI third offense, the minimums and maximums are:

Jail time: 30 days – 12 months

Fine: $2,500 – $5,000

If there was at least one passenger under the age of 16, then the sentence minimums and maximums are:

Jail Time: 60 days – 12 months

Fine: $5,000 – $10,000

The person must also pay for and complete the ACT assessment, education, and treatment program as required by M.C.A. § 61-8-732.

The person’s driver’s license shall also be suspended for a period of twelve (12) months and the person is not eligible for a probationary, necessary use, license, subject to M.C.A. § 61-5-208(2)(b) until ninety (90) days of the suspension have been served.

Further, as provided in M.C.A. § 61-8-733, the court shall order that each motor vehicle owned by the person at the time of the offense be either seized and subjected to the procedure provided under M.C.A. § 61-8-421 or equipped with an ignition interlock device as provided under Montana Code Annotated § 61-8-442, which requires that for twelve (12) months after the suspension of the person’s driver’s license that any vehicle that person operates be equipped with an ignition interlock device.

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Driving Under the Influence Per Se, First through Third Offense, a Misdemeanor

M.C.A. § 61-8-722 (1) On a DUI Per Se first offense, the minimums and maximums are:

Jail time: 0 – 10 days

Fine: $600 – $1,000

If there was at least one passenger under the age of 16, then the sentence minimums and maximums are:

Jail Time: zero – 20 days

Fine: $1,200 – $2,000

The person must also pay for and complete the ACT assessment, education, and treatment program as required by M.C.A. § 61-8-732.

The person’s driver’s license shall also be suspended for a period of 6 months, though the person may be eligible for a probationary, necessary use, license, subject to M.C.A. 61-5-208(2)(b).

Possible ignition interlock requirement during the probationary period pursuant to M.C.A. § 61-8-442.

M.C.A. § 61-8-722 (2) On a DUI Per Se second offense, the minimums and maximums are:

Jail time: 5 days – 1 year

Fine: $1,200 – $2,000

If there was at least one passenger under the age of 16, then the sentence minimums and maximums are:

Jail Time: 10 days – 1 year

Fine: $2,400 – $4,000

The person must also pay for and complete the ACT assessment, education, and treatment program as required by M.C.A. § 61-8-732.

The person’s driver’s license shall also be suspended for a period of 12 months and the person is not eligible for a probationary, necessary use, license, subject to M.C.A. § 61-5-208(2)(b) until forty-five (45) days of the suspension have been served.

Further, as provided in M.C.A. § 61-8-733, the court shall order that each motor vehicle owned by the person at the time of the offense be either seized and subjected to the procedure provided under M.C.A. § 61-8-421 or equipped with an ignition interlock device as provided under M.C.A. § 61-8-442, which requires that for twelve (12) months after the suspension of the person’s driver’s license that any vehicle that person operates be equipped with an ignition interlock device.

M.C.A. § 61-8-722 (3) On a DUI Per Se third offense, the minimums and maximums are:

Jail time: 30 days – 1 year

Fine: $2,500 – $5,000

If there was at least one passenger under the age of 16, then the sentence minimums and maximums are:

Jail Time: 60 days – 1 year

Fine: $5,000 – $10,000

The person must also pay for and complete the ACT assessment, education, and treatment program as required by M.C.A. § 61-8-732.

The person’s driver’s license shall also be suspended for a period of 12 months and the person is not eligible for a probationary, necessary use, license, subject to M.C.A. § 61-5-208(2)(b) until ninety (90) days of the suspension have been served.

Further, as provided in M.C.A. § 61-8-733, the court shall order that each motor vehicle owned by the person at the time of the offense be either seized and subjected to the procedure provided under M.C.A. § 61-8-421 or equipped with an ignition interlock device as provided under M.C.A. § 61-8-442, which requires that for 12 months after the suspension of the person’s driver’s license that any vehicle that person operates be equipped with an ignition interlock device.

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M.C.A. 61-8-731 Driving Under the Influence & Driving Under the Influence Per Se, Fourth or Subsequent Offense, a Felony

M.C.A. 61-8-731 (1)(a)-(c) For a fourth or subsequent DUI or DUI Per Se conviction the minimums and maximums are:

Prison time: 13 months and up to 5 years suspended time to run consecutive to the 13 months

Fine: $5,000 – $10,000

If the offender successfully completes a residential alcohol treatment program operated or approved by the Department of Corrections, the remainder of the 13-month sentence must be served on probation. The imposition or execution of the 13-month sentence may not be deferred or suspended, and the person is not eligible for parole.

(2) The Department of Corrections must place an offender either in an approved residential treatment program or in Montana State Prison.

(3) If an offender was, upon a prior felony DUI conviction, placed in a residential alcohol treatment program under subsection (2), whether or not the person successfully completed the program, the person shall be sentenced to the department of corrections for a term of not less than 13 months or more than 5 years or be fined an amount of not less than $5,000 or more than $10,000, or both.

NOTE: The only program the Montana Department of Corrections has approved under this section is the WATCh program, with facilities in Warm Springs and Glendive. It is, at a minimum, a 6 month residential treatment program.

NOTE: This section states that if an offender has already been to WATCh, the offender is not eligible to return, and must serve the 13 month sentence in Montana State Prison.